[Congressional Record Volume 164, Number 124 (Tuesday, July 24, 2018)]
[Senate]
[Pages S5304-S5306]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 3503. Mr. WYDEN (for himself, Mrs. Gillibrand, Mrs. Murray, Mr.
Booker, Mr. Markey, Ms. Warren, and Mr. Merkley) submitted an amendment
intended to be proposed to amendment SA 3399 proposed by Mr. Shelby to
the bill H.R. 6147, making appropriations for the Department of the
Interior, environment, and related agencies for the fiscal year ending
September 30, 2019, and for other purposes; which was ordered to lie on
the table; as follows:
At the appropriate place, insert the following:
TITLE __--PROTECTING AMERICAN VOTES AND ELECTIONS
SEC. __1. SHORT TITLE.
This title may be cited as the ``Protecting American Votes
and Elections Act of 2018''.
SEC. __2. FINDINGS.
Congress makes the following findings:
(1) Access to the ballot, free and fair elections, and a
trustworthy election process are at the core of American
Democracy. Just as the Founding Fathers signed their names to
paper supporting their views for a government by and for the
people, access to the paper ballot is the best way to ensure
elections stay by and for the American people. Using paper
provides an easily auditable, tamper proof, and simple way
for citizens to access their ballot. It is for these reasons
and more that using paper ballots to ensure resilient and
fair elections should be the priority of this Nation.
(2) Risk-limiting audits will help to protect our elections
from cyberattacks, by ensuring that if the electoral outcome
is incorrect, for instance because someone tampered with the
electronic counts or reporting, the audit has a large, known
probability of correcting the outcome by requiring a full
hand count. Paper ballots are vital to the audit process
since, other than through manual inspection of a sample of
paper ballots, there is currently no reliable way to
determine whether an election was hacked or the outcome was
miscalculated.
(3) Risk-limiting audits are a cost effective way of
auditing election results. They generally require inspecting
only a small percentage of the ballots cast in an election,
and proceed to a full hand count only when sampling does not
provide strong evidence that the reported outcome is correct.
This will ensure that Americans have confidence in their
election results, without the cost of a full recount of every
ballot in the country.
SEC. __3. PAPER BALLOT AND MANUAL COUNTING REQUIREMENTS.
(a) In General.--Section 301(a)(2) of the Help America Vote
Act of 2002 (52 U.S.C. 21081(a)(2)) is amended to read as
follows:
``(2) Paper ballot requirement.--
``(A) Voter-verified paper ballots.--
``(i) Paper ballot requirement.--(I) The voting system
shall require the use of an individual, durable, voter-
verified, paper ballot of the voter's vote that shall be
marked and made available for inspection and
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verification by the voter before the voter's vote is cast and
counted, and which shall be counted by hand or read by an
optical character recognition device or other counting
device. For purposes of this subclause, the term `individual,
durable, voter-verified, paper ballot' means a paper ballot
marked by the voter by hand or a paper ballot marked through
the use of a nontabulating ballot marking device or system,
so long as the voter shall have the option to mark his or her
ballot by hand.
``(II) Except as required to meet the accessibility
requirements under paragraph (3), the printed or marked vote
selections on any ballot marked through the use of a ballot
marking device or system that are used for vote counting or
auditing shall allow inspection and verification by the voter
under subclause (I) without the aid of any machine or other
equipment.
``(III) The voting system shall provide the voter with an
opportunity to correct any error on the paper ballot before
the permanent voter-verified paper ballot is preserved in
accordance with clause (ii).
``(IV) The voting system shall not preserve the voter-
verified paper ballots in any manner that makes it possible,
at any time after the ballot has been cast, to associate a
voter with the record of the voter's vote without the voter's
consent.
``(ii) Preservation as official record.--The individual,
durable, voter-verified, paper ballot used in accordance with
clause (i) shall constitute the official ballot and shall be
preserved and used as the official ballot for purposes of any
recount or audit conducted with respect to any election for
Federal office in which the voting system is used.
``(iii) Manual counting requirements for recounts and
audits.--(I) Each paper ballot used pursuant to clause (i)
shall be suitable for a manual audit, and shall be counted by
hand in any recount or audit conducted with respect to any
election for Federal office.
``(II) In the event of any inconsistencies or
irregularities between any electronic vote tallies and the
vote tallies determined by counting by hand the individual,
durable, voter-verified, paper ballots used pursuant to
clause (i), and subject to subparagraph (B), the individual,
durable, voter-verified, paper ballots shall be the true and
correct record of the votes cast.
``(iv) Application to all ballots.--The requirements of
this subparagraph shall apply to all ballots cast in
elections for Federal office, including ballots cast by
absent uniformed services voters and overseas voters under
the Uniformed and Overseas Citizens Absentee Voting Act and
other absentee voters.
``(B) Special rule for treatment of disputes when paper
ballots have been shown to be compromised.--
``(i) In general.--In the event that--
``(I) there is any inconsistency between any electronic
vote tallies and the vote tallies determined by counting by
hand the individual, durable, voter-verified, paper ballots
used pursuant to subparagraph (A)(i) with respect to any
election for Federal office; and
``(II) it is demonstrated by clear and convincing evidence
(as determined in accordance with the applicable standards in
the jurisdiction involved) in any recount, audit, or contest
of the result of the election that the paper ballots have
been compromised (by damage or mischief or otherwise) and
that a sufficient number of the ballots have been so
compromised that the result of the election could be changed,
the determination of the appropriate remedy with respect to
the election shall be made in accordance with applicable
State law, except that the electronic tally shall not be used
as the exclusive basis for determining the official certified
result.
``(ii) Rule for consideration of ballots associated with
each voting machine.--For purposes of clause (i), only the
paper ballots deemed compromised, if any, shall be considered
in the calculation of whether or not the result of the
election could be changed due to the compromised paper
ballots.''.
(b) Conforming Amendment Clarifying Applicability of
Alternative Language Accessibility.--Section 301(a)(4) of
such Act (52 U.S.C. 21081(a)(4)) is amended by inserting
``(including the paper ballots required to be used under
paragraph (2))'' after ``voting system''.
(c) Other Conforming Amendments.--Section 301(a)(1) of such
Act (52 U.S.C. 21081(a)(1)) is amended--
(1) in subparagraph (A)(i), by striking ``counted'' and
inserting ``counted, in accordance with paragraphs (2) and
(3)'';
(2) in subparagraph (A)(ii), by striking ``counted'' and
inserting ``counted, in accordance with paragraphs (2) and
(3)'';
(3) in subparagraph (A)(iii), by striking ``counted'' each
place it appears and inserting ``counted, in accordance with
paragraphs (2) and (3)''; and
(4) in subparagraph (B)(ii), by striking ``counted'' and
inserting ``counted, in accordance with paragraphs (2) and
(3)''.
(d) Effective Date.--Notwithstanding section 301(d) of the
Help America Vote Act of 2002 (52 U.S.C. 21081(d)), each
State and jurisdiction shall be required to comply with the
amendments made by this section for the regularly scheduled
election for Federal office in November 2020, and for each
subsequent election for Federal office.
SEC. __4. ACCESSIBILITY AND BALLOT VERIFICATION FOR
INDIVIDUALS WITH DISABILITIES.
(a) In General.--Section 301(a)(3)(B) of the Help America
Vote Act of 2002 (52 U.S.C. 21081(a)(3)(B)) is amended to
read as follows:
``(B)(i) satisfy the requirement of subparagraph (A)
through the use of at least 1 voting system equipped for
individuals with disabilities, including nonvisual and
enhanced visual accessibility for the blind and visually
impaired, and nonmanual and enhanced manual accessibility for
the mobility and dexterity impaired, at each polling place;
and
``(ii) meet the requirements of subparagraph (A) and
paragraph (2)(A) by using a system that allows the voter to
privately and independently verify the permanent paper ballot
through the presentation, in accessible form, of the printed
or marked vote selections from the same printed or marked
information that would be used for any vote counting or
auditing; and''.
(b) Specific Requirement of Study, Testing, and Development
of Accessible Paper Ballot Verification Mechanisms.--
(1) Study and reporting.--Subtitle C of title II of such
Act (52 U.S.C. 21081 et seq.) is amended by inserting after
section 246 the following new section:
``SEC. 246A. STUDY AND REPORT ON ACCESSIBLE PAPER BALLOT
VERIFICATION MECHANISMS.
``(a) Study and Report.--The Director of the National
Science Foundation shall make grants to not fewer than 3
eligible entities to study, test, and develop accessible
paper ballot voting, verification, and casting mechanisms and
devices and best practices to enhance the accessibility of
paper ballot voting and verification mechanisms for
individuals with disabilities, for voters whose primary
language is not English, and for voters with difficulties in
literacy, including best practices for the mechanisms
themselves and the processes through which the mechanisms are
used.
``(b) Eligibility.--An entity is eligible to receive a
grant under this part if it submits to the Director (at such
time and in such form as the Director may require) an
application containing--
``(1) certifications that the entity shall specifically
investigate enhanced methods or devices, including non-
electronic devices, that will assist such individuals and
voters in marking voter-verified paper ballots and presenting
or transmitting the information printed or marked on such
ballots back to such individuals and voters, and casting such
ballots;
``(2) a certification that the entity shall complete the
activities carried out with the grant not later than December
31, 2020; and
``(3) such other information and certifications as the
Director may require.
``(c) Availability of Technology.--Any technology developed
with the grants made under this section shall be treated as
non-proprietary and shall be made available to the public,
including to manufacturers of voting systems.
``(d) Coordination With Grants for Technology
Improvements.--The Director shall carry out this section so
that the activities carried out with the grants made under
subsection (a) are coordinated with the research conducted
under the grant program carried out by the Commission under
section 271, to the extent that the Director and Commission
determine necessary to provide for the advancement of
accessible voting technology.
``(e) Authorization of Appropriations.--There is authorized
to be appropriated to carry out subsection (a) $10,000,000,
to remain available until expended.''.
(2) Clerical amendment.--The table of contents of such Act
is amended by inserting after the item relating to section
246 the following new item:
``Sec. 246A. Study and report on accessible paper ballot verification
mechanisms.''.
SEC. __5. RISK-LIMITING AUDITS.
(a) In General.--Title III of the Help America Vote Act of
2002 (52 U.S.C. 21081 et seq.) is amended by inserting after
section 303 the following new section:
``SEC. 303A. RISK-LIMITING AUDITS.
``(a) Definitions.--In this section:
``(1) Risk-limiting audit.--
``(A) In general.--The term `risk-limiting audit' means a
post-election process such that, if the reported outcome of
the contest is incorrect, there is at least a 95 percent
chance that the audit will replace the incorrect outcome with
the correct outcome as determined by a full, hand-to-eye
tabulation of all votes validly cast in that election contest
that ascertains voter intent manually and directly from
voter-verifiable paper records.
``(B) Reported outcome.--The term `reported outcome' means
the outcome of an election contest which is determined
according to the canvass and which will become the official,
certified outcome unless it is revised by an audit, recount,
or other legal process.
``(C) Incorrect outcome.--The term `incorrect outcome'
means an outcome that differs from the outcome that would be
determined by a full tabulation of all votes validly cast in
that election contest, determining voter intent manually,
directly from voter-verifiable paper records.
``(D) Outcome.--The term `outcome' means the winner or set
of winners of an election contest, which might be candidates
or positions.
``(2) Ballot manifest.--The term `ballot manifest' means a
record maintained by each county that--
``(A) is created without reliance on any part of the voting
system used to tabulate votes;
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``(B) functions as a sampling frame for conducting a risk-
limiting audit; and
``(C) contains the following information about ballots cast
and counted:
``(i) The total number of ballots cast and counted in the
election (including undervotes, overvotes, and other invalid
votes).
``(ii) The total number of ballots cast in each contest in
the election (including undervotes, overvotes, and other
invalid votes).
``(iii) A precise description of the manner in which the
ballots are physically stored, including the total number of
physical groups of ballots, the numbering system for each
group, a unique label for each group, and the number of
ballots in each such group.
``(b) Requirement.--
``(1) In general.--
``(A) Audits.--Each State and jurisdiction shall administer
risk-limiting audits of the results of all elections for
Federal office held in the State in accordance with the
requirements of paragraph (2).
``(B) Full manual tally.--If a risk-limiting audit
conducted under subparagraph (A) leads to a full manual tally
of an election contest, the State or jurisdiction shall use
the results of the full manual tally as the official results
of the election contest.
``(2) Audit requirements.--
``(A) Rules and procedures.--
``(i) In general.--Risk-limiting audits shall be conducted
in accordance with the rules and procedures established by
the chief State election official of the State not later than
1 year after the date of the enactment of this section.
``(ii) Matters included.--The rules and procedures
established under clause (i) may include the following:
``(I) Rules for ensuring the security of ballots and
documenting that prescribed procedures were followed.
``(II) Rules and procedures for ensuring the accuracy of
ballot manifests produced by jurisdictions.
``(III) Rules and procedures for governing the format of
ballot manifests, cast vote records, and other data involved
in risk-limiting audits.
``(IV) Methods to ensure that any cast vote records used in
a risk-limiting audit are those used by the voting system to
tally the election results sent to the Secretary of State and
made public.
``(V) Procedures for the random selection of ballots to be
inspected manually during each audit.
``(VI) Rules for the calculations and other methods to be
used in the audit and to determine whether and when the audit
of each contest is complete.
``(VII) Procedures and requirements for testing any
software used to conduct risk-limiting audits.
``(B) Timing.--The risk-limiting audit shall be completed
not later than the date that the result of the election is
certified by the State.
``(C) Public report.--After the completion of the risk-
limiting audit, the State shall publish a report on the
results of the audit, together with such information as
necessary to confirm that the audit was conducted properly.
``(c) Effective Date.--Each State and jurisdiction shall be
required to comply with the requirements of this section for
the regularly scheduled election for Federal office in
November 2020, and for each subsequent election for Federal
office.''.
(b) Conforming Amendments Related to Enforcement.--Section
401 of such Act (52 U.S.C. 21111) is amended by striking
``and 303'' and inserting ``303, and 303A''.
(c) Clerical Amendment.--The table of contents for such Act
is amended by inserting after the item relating to section
303 the following new item:
``Sec. 303A. Risk-limiting audits.''.
______